The Supreme Court is set to hear a case that could have a significant impact on the level and extent of citizens’ fifth amendment rights. The fifth amendment, popularly known as the right to avoid self-incrimination (“pleading the fifth”) is often believed to be universal and applicable at each and every stage of a criminal matter. As this case shows, that idea is very much in doubt.

Case Stems from Civil Dismissal

The case arose when a police officer allegedly retained a knife from his employer (the police department and thus, the city). Later he went looking for a new job, and when he applied to a different department, he told them about the knife. That department instructed him to inform his old department that he had retained it, which he did.

In many cases in our daily lives, we want to make sure that we can document what people say to us. Maybe it is for goodwill, maybe it is for our own memory, or maybe it is to try to “prove” that someone is doing or saying something they should not.

The obvious answer and one we see in the movies often, is to just record them. In Maryland, as in many states, that is wiretapping, and it is a crime.

The U.S. Supreme Court is set to hear a dispute between the government and Microsoft about whether or not Microsoft has to turn over stored customer information such as emails to criminal prosecutors. The result of the case could have a huge impact on people’s Fourth Amendment rights, and affect what information the government can and cannot get when conducting a criminal investigation.

Microsoft Challenges a Warrant

The facts of the case are simple. The government was prosecuting people suspected of committing drug crimes. It asked Microsoft to turn over those suspects’ private emails. It did—but only those that were stored on servers here in the United States. Microsoft refused to turn over any information from servers that were located in Ireland.

Legalized marijuana is in the news again, this time because of an announcement by the Trump administration ordering prosecutors to crack down on all usage and possession of the drug. Whether you are for or against its use and legalization, the battle is one that has roots all the way back to the time our country was founded. It is a study in the interplay between state and federal governments when it come to making and enforcing criminal laws.

A History Lesson

It is best to start with a basic history lesson. When our country was founded, the Founding Fathers had a fear of big government, coming off of having been ruled by a monarchy that told them what to do from a faraway land. Thus, wanting locals to have a say in their own governance, our federal and constitutional framework was set up to limit what the federal government could tell states what to do in many areas. One such area is criminal law, where states generally were given free reign to determine what would and would not be a crime.

Humans are visual animals. That is why the power of video evidence can be so persuasive in a trial. Combine that with the fact that video and surveillance cameras are seemingly everywhere, and it feels like every crime gets caught on video, and when it does, there is no defense.

In many cases, there are stories behind video. Someone who is supposedly caught on video committing a crime still has every right to his or her constitutional rights, including a trial and a defense.

Everybody tends to agree that distracted driving is a big problem and that everything should be done that can be to keep people’s eyes on the road and off their cell phones. That is why many states have enacted laws that make texting while driving illegal, or at least, a traffic offense.

The real debate is not whether it should be illegal to text when driving or not, but whether it should be a primary or secondary offense.

Lately there are more and more services that offer to trace your DNA. They propose to tell you what your ancestry really is, revealing things about your familial and ethnic background that you may not have even known. The commercials portray the services as being fun, fascinating, and useful. Just mail a sample to them and they send you back your DNA results.

Information May Threaten Privacy

Reports have disclosed that many of these services can and will give the DNA evidence that they find about you to police, should the police obtain a warrant for such information. That DNA evidence could in turn be used as evidence to link you to a crime.

Unlike what you see on TV, the state cannot just show up at trial and present witnesses and evidence that it has concealed from the defendant. The defendant is legally entitled to be told of information the state has about things like identifying witness evidence. When the state fails to provide this information, a conviction may be overturned, as was the case in a recent case.

Witness IDs Co-Defendant

The case involved a murder to which there was only one eyewitness, who was prepared to testify that of the two men present at the scene of the crime, and who were co-defendants, she recognizes one co-defendant as not being the murderer (thus implicating the other defendant). The state did not disclose to the defendant before trial that the state had the witness or knew of her testimony.

Being falsely convicted and spending years, perhaps decades, behind bars for a crime that you did not commit is possibly one of the most terrifying things that can happen to a person. Today, we thankfully have DNA evidence and a system that recognizes second chances for people when new evidence is presented showing innocence.

However, that still does not mean that innocent people do not languish in jail for years, waiting for the legal system to recognize the science that proves their innocence. When they are ultimately shown to have been falsely imprisoned, the road to obtain compensation for those lost years can be long and difficult.

There are times when the truth is stranger than fiction. Sometimes that happens in actual legal cases, when you just have to ask what a court was thinking when a decision is entered.

Man Asks for a Lawyer…Or Does He?

Just last week, a court in Louisiana had to determine a very serious issue—whether a suspect had properly invoked his constitutional right to an attorney. He was not provided one, although he said he asked for one while he was being interrogated by police. The transcript of his interrogation shows that he said, “I know that I didn’t do it, so why don’t you just give me a lawyer dog ‘cause this is not what’s up.”

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